STATE OF OHIO v. BRANDON D. JONES
C.A. CASE NO. 24075
T.C. CASE NO. 09CR2740/1
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
August 12, 2011
2011-Ohio-4013
GRADY, P.J.
Criminal Appeal from Common Pleas Court
Christopher W. Thompson, Atty. Reg. No.0055379, 130 W. Second Street, Suite 2050, Dayton, OH 45402 Attorney for Defendant
O P I N I O N
GRADY, P.J.:
{¶ 1} Defendant, Brandon Jones, appeals from his conviction and sentence for aggravated robbery and possession of crack cocaine.
{¶ 2} On August 21, 2009, between 3:00 and 4:00 a.m., Antanyis
{¶ 3} Alston‘s brother, Kion, was inside his apartment and heard the gunshot. When Kion Alston opened the door, he saw Antanyis Alston‘s face was injured and that he was bleeding. Kion Alston told his brother to run to their sister‘s house in case the assailants returned. Antanyis Alston called his sister, Monique Boykin, told her what had happened, and then ran over to her house, which was only ten minutes away by foot. After Alston arrived at Boykin‘s house, paramedics were called and they took Alston to the hospital. Alston talked with Dayton police at the hospital, and from the information Alston provided police began searching for D‘Akshun Winston, whom police found and arrested the next day. Alston‘s cell phone was found in Winston‘s pocket.
{¶ 5} Defendant was indicted on one count of aggravated robbery,
{¶ 6} Defendant timely appealed to this court.
FIRST ASSIGNMENT OF ERROR
{¶ 7} “THE JURY‘S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF
{¶ 8} A weight of the evidence argument challenges the believability of the evidence and asks which of the competing inferences suggested by the evidence is more believable or persuasive. State v. Hufnagle (Sept. 6, 1996), Montgomery App. No. 15563. The proper test to apply to that inquiry is the one set forth in State v. Martin (1983), 20 Ohio App.3d 172, 175:
{¶ 9} “The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Accord: State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52.
{¶ 10} The credibility of the witnesses and the weight to be given to their testimony are matters for the trier of facts to resolve. State v. DeHass (1967), 10 Ohio St.2d 230. In State v. Lawson (August 22, 1997), Montgomery App. No. 16288, we observed:
{¶ 11} “Because the factfinder . . . has the opportunity to see and hear the witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a judgment is against the manifest weight of the evidence requires that substantial deference be extended to the fact finder‘s
{¶ 12} This court will not substitute its judgment for that of the trier of facts on the issue of witness credibility unless it is patently apparent that the trier of facts lost its way in arriving at its verdict. State v. Bradley (Oct. 24, 1997), Champaign App. No. 97-CA-03.
{¶ 13} Defendant argues that his conviction for aggravated robbery in violation of
{¶ 14} The pivotal issue at Defendant‘s trial was whether he was one of the three assailants who robbed and beat Antanyis Alston. Defendant argues that since there was no physical evidence or other witnesses that corroborated Alston‘s identification of Defendant, and because Alston‘s testimony was not worthy of belief, the jury lost its way in finding Defendant guilty.
{¶ 15} Alston consistently acknowledged from the beginning that he did not know Jones’ real name, but that he had seen him in the
{¶ 16} In attempting to discredit Alston‘s identification of him, Defendant points out that Alston‘s brother, Kion, testified that Alston never told him the names of the persons who robbed him. That is understandable given that Alston did not know their real names. Defendant further points to the testimony of Officer Watkins that while speaking with Alston at the hospital, Alston gave the name “D‘AK,” but was unable to give the names of any of the other assailants. Alston acknowledged, however, that he provided only descriptions of the other two assailants because he did not know their real or street names.
{¶ 17} Defendant argues that Alston‘s testimony was inconsistent regarding the place where this robbery occurred. Alston consistently testified that he was robbed outside his brother‘s apartment, which is in the Hilltop Homes neighborhood. Alston‘s brother, Kion, testified that he heard a gunshot outside
{¶ 18} With respect to the time of the robbery, Alston consistently testified that it occurred between 3:00 and 4:00 a.m. on August 21, 2009. Alston‘s brother, Kion, testified that he heard the gunshot around 4:00 a.m. Alston‘s sister, Monique Boykin, testified that Alston called her between 3:00 and 4:00 a.m. and told her about the robbery that had just happened. It was Officer Watkins who created a conflict in the time frame by testifying that he was dispatched at 8:46 a.m. Once again, this has little or nothing to do with the reliability of Alston‘s identification of Defendant as one of the assailants.
{¶ 19} Finally, even assuming that Alston did misidentify a person from some photographs as the third assailant, whom Alston consistently claimed he had never seen before and did not know,
{¶ 20} Defendant also points to other inconsistencies in Alston‘s testimony and conflicts between Alston‘s testimony and the testimony of other witnesses. Those matters are peripheral to the critical issue: whether Alston was beaten and robbed by Defendant. The jury resolved the issue of Alston‘s credibility in his favor. We find no basis to disturb that finding.
{¶ 21} The credibility of the witnesses and the weight to be given to their testimony were matters for the trier of facts, the jury, to decide. DeHass. The jury did not lose its way simply because it chose to believe the State‘s witnesses and theory of the case, rather than Defendant‘s, which it had a right to do. Id.
{¶ 22} Reviewing this record as a whole, we cannot say that the evidence weighs heavily against a conviction, that the trier of facts lost its way in choosing to believe the State‘s witnesses, or that a manifest miscarriage of justice has occurred. Defendant‘s conviction for aggravated robbery is not against the manifest weight of the evidence.
{¶ 23} Defendant‘s first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 24} “THE DEFENDANT-APPELLANT RECEIVED INEFFECTIVE
{¶ 25} Counsel‘s performance will not be deemed ineffective unless and until counsel‘s performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arose from counsel‘s performance. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. To show that a defendant has been prejudiced by counsel‘s deficient performance, the defendant must affirmatively demonstrate to a reasonable probability that were it not for counsel‘s errors, the result of the trial would have been different. Id., State v. Bradley (1989), 42 Ohio St.3d 136.
{¶ 26} Detective Ritchie testified on cross-examination that when Officer Watkins showed Alston photographs in an attempt to identify his third assailant, Alston chose an individual who turned out not to be the correct person. Defendant claims that his trial counsel performed deficiently by failing to introduce the photospread that was the subject of Alston‘s misidentification of the third assailant, and further by failing to cross-examine Alston and Officer Watkins about that misidentification. Defendant argues that the key piece of evidence to attack Alston‘s identification of him was the photospread from which the misidentification of the third assailant was made, because that
{¶ 27} The jury was made aware of the fact of Alston‘s misidentification of the third assailant. Any relevance the evidence concerning Alston‘s misidentification might have in terms of negatively impacting the reliability of Alston‘s identification of Defendant as one of his assailants would be marginal at best, given that Defendant consistently maintained that he had never seen the third assailant before and did not know him, but that he had seen Defendant several times before in the neighborhood and knew him as “B.” Defendant‘s contention about what might have happened had defense counsel introduced the photographs associated with Alston‘s misidentification of the third assailant is too speculative to demonstrate that Defendant was prejudiced by counsel‘s failure.
{¶ 28} Defendant has failed to demonstrate deficient performance by defense counsel, much less that but for counsel‘s failure to introduce the photographs connected to Alston‘s misidentification of the third suspect, Defendant would have been found not guilty. No prejudice, as defined by Strickland, has been demonstrated.
{¶ 29} Defendant‘s second assignment of error is overruled.
{¶ 30} “THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING PORTIONS OF THE TRANSCRIPT TO BE READ TO THE JURY DURING DELIBERATIONS THEREBY DENYING APPELLANT‘S SIXTH AMENDMENT RIGHT TO A FAIR TRIAL.”
{¶ 31} During deliberations the jury sent a note to the trial court asking to have read to them Alston‘s testimony from the start of his direct examination to the point where he testifies that D‘AK said: “Kill that n---a.” The jury also requested all cross-examination of Alston concerning the gun. Over Defendant‘s objection, the trial court had the court reporter read to the jury the requested portions of Alston‘s testimony.
{¶ 32} Defendant argues that the trial court abused its discretion because, by reading only a portion of Alston‘s testimony to the jury, the trial court unfairly emphasized that portion of Alston‘s testimony, to the exclusion of other portions of Alston‘s testimony that Defendant claims were inconsistent and contradictory.
{¶ 33} A trial court possesses broad discretion in deciding whether to permit a jury to re-hear all or part of a witness‘s testimony during its deliberations. State v. Frazier, Clark App. No. 2008CA0118, 2010-Ohio-1507 at ¶53, citing State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, at ¶123. Absent an abuse of
{¶ 34} “Abuse of discretion’ has been defined as an attitude that is unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482 N.E.2d 1248, 1252. It is to be expected that most instances of abuse of discretion will result in decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary.
{¶ 35} “A decision is unreasonable if there is no sound reasoning process that would support that decision. It is not enough that the reviewing court, were it deciding the issue de novo, would not have found that reasoning process to be persuasive, perhaps in view of countervailing reasoning processes that would support a contrary result.” AAAA Enterprises, Inc. v. River Place Community Redevelopment (1990), 50 Ohio St.3d 157, 161.
{¶ 36} Defendant argues that the testimony read to the jury unfairly prejudiced him because it clearly implies that Alston knew Defendant‘s name, when other portions of Alston‘s testimony that were not read to the jury clearly demonstrate that Alston did not know Defendant‘s name until after he had identified Defendant from photographs and Detective Ritchie told Alston Defendant‘s name.
{¶ 38} The jury‘s request was detailed, seeking very specific parts of Alston‘s testimony, and the trial court strictly limited its response to what was requested by the jury. The trial court acted well within its discretion in allowing the portions of Alston‘s testimony requested by the jury to be re-read to the jury. No abuse of discretion is demonstrated.
{¶ 39} Defendant‘s third assignment of error is overruled.
FOURTH ASSIGNMENT OF ERROR
{¶ 40} “THE TRIAL COURT ERRED IN DISAPPROVING SHOCK INCARCERATION, INTENSIVE PROGRAM PRISON AND TRANSITIONAL CONTROL ARGUMENT.”
{¶ 41} Defendant argues that the trial court erred in disapproving shock incarceration, intensive program prison, and transitional control, and that the court further erred in not putting its reasons for the disapproval on the record. See: State v. Howard, Montgomery App. No. 23815, 2010-Ohio-5283.
{¶ 42} At the sentencing hearing and again in its judgment entry of conviction, the trial court did not “disapprove” Defendant for shock incarceration, intensive program prison and transitional control, and then fail to put its reasons for the disapproval on the record. Rather, the court concluded that Defendant was “not eligible” for shock incarceration, intensive program prison, or transitional control.
{¶ 43}
{¶ 44}
{¶ 45}
{¶ 46} In State v. Howard, supra, we held that the trial court erred by disapproving transitional control in the judgment entry of conviction because the court is able to approve or disapprove transitional control only after a person has been incarcerated and the adult parole authority sends the required three weeks’ notice to the trial court indicating its intention to grant transitional control. Id., at ¶2, 40-44. In the present case, the court instead held that Defendant is not eligible, which is correct. After Defendant completes his mandatory three year prison term on the firearm specification, and if and when the trial court receives notice that the adult parole authority intends to grant Defendant transitional control, the trial court will have an opportunity at that appropriate time to approve or disapprove transitional control.
{¶ 47} Defendant‘s fourth assignment of error is overruled.
HALL, J. And DONOFRIO, J., concur.
(Hon. Gene Donofrio, Seventh District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.)
Copies mailed to:
Andrew T. French, Esq.
Christopher W. Thompson, Esq.
Hon. Dennis J. Langer